37 S.W.3d 413 (Mo.App. S.D. 2001), 23145, Vaughn v. Irma Willard & Irma Hamilton Willard

• Citation: 37 S.W.3d 413
• Docket Number: 23145 & 23200
• Date: 08 February 2001
• Parties: Lorin L. Vaughn, Respondent, Bryan W. Olmsted and Sherry L. Olmsted, Cross-Appellants/ Respondents, v. Irma Willard and Irma Hamilton Willard, Trustee Under the Original Revocable Living Trust Conveyance and Agreement of April 11, 1989, Appellant/Respondent.
• Court: Missouri Court of Appeals

Page 413

37 S.W.3d 413 (Mo.App. S.D. 2001)

Lorin L. Vaughn, Respondent, Bryan W. Olmsted and Sherry L. Olmsted, Cross-Appellants/ Respondents,

v.

Irma Willard and Irma Hamilton Willard, Trustee Under the Original Revocable Living Trust Conveyance and Agreement of April 11, 1989, Appellant/Respondent.

23145 & 23200

Court of Appeals of Missouri, Southern District.

February 8, 2001

Page 414

[Copyrighted Material Omitted]

Appeal From: Circuit Court of Ozark County, Hon. John G. Moody

Page 415

Counsel for Appellant: Frederick W. Martin, III

Counsel for Respondent: Steven Privette

Opinion Summary: None

Garrison, J., and Darnold, Sr., J., concur.

Robert S. Barney, Chief Judge

Appellant Irma Hamilton Willard, Trustee of the Malden Willard Trust, ("Defendant") appeals from an "amended judgment" for specific performance of a real estate sales contract in favor of Lorin L. Vaughn ("Plaintiff Vaughn"), involving a parcel of land located in Ozark County, Missouri. Defendant also appeals from a "second amended judgment" for specific performance of a real estate sales contract in favor of Bryan W. Olmsted and Sherry L. Olmsted, his wife ("Plaintiffs Olmsted"), also relating to several parcels of land located in Ozark County. Plaintiffs Olmsted also bring a cross-appeal from the trial court's denial of their petition for attorney fees, contending that under the terms of their real estate contract with Defendant that they were entitled to these fees.

"The standard of review of this court-tried case is governed by the principles set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." Rone v. Reeves, 20 S.W.3d 526, 527 (Mo.App. 2000). "We shall affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or unless it erroneously declares or applies the law." Id.; see Murphy, 536 S.W.2d at 32; In Re Estate of Looney, 975 S.W.2d 508, 513 (Mo.App. 1998). "[W]e accept as true the evidence and inferences therefrom that support the trial court's judgment and disregard contrary evidence." Id. "'We keep in mind that a trial court is free to believe or disbelieve all, part, or none of the testimony of any witness.''' Id. (quoting Crawford v. Detring, 965 S.W.2d 188, 189 (Mo.App. 1998)).

It is well settled that:

For specific performance to be granted in regard to property a technical, legal description is not a strict necessity. The contract in question must either designate or describe the land with accuracy and certainty or provide a way for the identification of that land to be perfected by parol evidence.

Land Improvement, Inc. v. Ferguson, 800 S.W.2d 460, 463 (Mo.App. 1990); see Herzog v. Ross, 355 Mo. 406, 409, 196 S.W.2d 268, 270 (Mo. banc 1946); see also Rone, 20 S.W.3d at 529.

On June 5, 1998, Defendant held an auction sale of various items of personal property and several parcels of real estate. Plaintiffs Olmsted made the high bid of $56,500.00 on four parcels of land and Plaintiff Vaughn made the high bid of $12,500.00 for one parcel of land. On the same date Defendant, Plaintiffs Olmsted and Plaintiff Vaughn entered into separate contracts for the sale of real property.¹ Although closing of the Olmsted and Vaughn contracts was scheduled for August

Page 416

5, 1998, prior to that time Defendant sent a letter asking for a rescission of the contracts and none of the parcels were transferred by Defendant to any of the plaintiffs on the appointed date.

In her sole point relied on, Defendant contends that the trial court erred in entering judgments for specific performance of the Olmsted and Vaughn sales contracts because the "descriptions of the land being sold in such contracts were not sufficiently definite and certain to allow a decree of specific performance . . . ." She argues that neither contract

contained a legal description, street address, or boundaries of the property, but instead referred only to a parcel number and the amount of acres involved. However, this Court need not review the contentions set out in Defendant's sole point because these contentions were never placed before the trial court for its consideration. "Issues raised for the first time on appeal are not preserved for review." Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 462 (Mo. banc 1998). "'It is a fundamental rule that contentions not put before the trial court will not be considered by the appellate court; an appellate court will not convict a trial court of error on an issue which was not put before it to decide.'" Smith v. Associated Natural Gas Co., 7 S.W.3d 530, 534 (Mo.App. 1999)(quoting Strunk v. Hahn, 797 S.W.2d 536, 549 (Mo.App. 1990)); see also Boshers v. Humane Soc'y of Mo., Inc., 929 S.W.2d 250, 254 (Mo.App. 1996).

In her respective answers to the Plaintiffs' respective petitions for specific performance of their real estate contracts, Defendant never raised the issue of the insufficiency of the description of the land...